Brief for Votevets Action Fund as Amicus Curiae in Support of Respondents

Brief for Votevets Action Fund as Amicus Curiae in Support of Respondents

September 22, 2017

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Deborah N. Archer — NYU School of Law Civil Rights Clinic,

Aderson B. Francois — Institute for Public Representation Georgetown University Law Center

SUMMARY OF ARGUMENT

The right to vote and the practical ability to exercise that right are essential to a functional, responsive democracy. Active duty servicemembers and veterans have made significant and unique sacrifices to protect American democracy. Quite often, however, these servicemembers are effectively prevented from exercising the very rights they risk their lives to protect.

Active duty servicemembers and veterans experience uniquely personal consequences from elections. Policy changes affect military salaries and benefits, which then impact the quality and accessibility of healthcare, higher education, housing and post-service employment, as well as other essential benefits for servicemembers and their families. Yet, for all of the sacrifices they make, active duty servicemembers and veterans register to vote and exercise the right to vote for the elected representatives who implement these policies at disproportionately low rates.

The transient nature of the military lifestyle severely complicates servicemembers’ ability to participate in this most basic political process. Active duty servicemembers, including those serving in the National Guard or the Reserves, depend on the military postal system. This system uses military-specific addresses tied to commands or units to send and receive important mail. However, servicemembers’ mail is not automatically forwarded from their home addresses. Servicemembers must take the affirmative step of providing these military addresses to any organization from which they expect to receive mail. Even when not deployed to remote areas lacking reliable access to mail, servicemembers may have to travel more frequently – often with little to no notice – and must contend with early deadlines for registration and absentee voting. Although there is federal law meant to provide assistance to absent voters, the law does not ameliorate all of the logistical and residency-based difficulties those voters confront when voting from outside of their districts

Veterans confront further barriers to remaining on voter rolls and exercising the right to vote, including disproportionately high rates of mental health issues such as post-traumatic stress disorder, substance abuse, poverty, and homelessness. These factors act to further depress the turnout of a population that already experiences unique barriers to accessing the polls.

Ohio’s Supplemental Process, operating in conjunction with the obstacles already impeding voters’ access to the franchise, creates a near- impenetrable barrier to voting for active duty servicemembers and veterans. By allowing failure to vote for only two years to trigger a Confirmation Notice, the Supplemental Process does not distinguish between lack of voting activity due to ineligibility and lack of voting activity despite continued eligibility – such as missing an election while on deployment. The Supplemental Process disparately obstructs active duty servicemember and veteran voters with mobile lifestyles. Ohio’s use of a trigger as broad as the failure to vote to initiate Confirmation Notices will result in the erroneous removal and disenfranchisement of eligible military and veteran voters.

As the text of the National Voter Registration Act (“NVRA”) and the Help America Vote Act (“HAVA”) make clear, Congress intended to increase engagement in the democratic process. While the laws authorize states to establish mechanisms for maintaining voter rolls, these mechanisms are subject to a strict prohibition on the removal of registrants for merely failing to vote. The legislative histories of the NVRA and HAVA confirm the government’s duty to protect the fundamental right to vote from discriminatory voter roll maintenance processes.